Chapter 11 - Which Cases are Unsuitable for JDR?

Summary

Years ago, we suggested that certain public disputes should not be mediated (Susskind and Madigan 1984). We pointed specifically to situations where:

• 1. Parties are too numerous, diverse, or hard to identify;

• 2. Access to dispute resolution services is difficult for some of the parties;

• 3. The outcome is dependent on controversial value judgments while a community mandate or consensus might be most useful;

• 4. The community at large clearly cares about the outcome;

• 5. Implementation of a negotiated agreement could be readily blocked by a dissatisfied party.

In these situations, it makes more sense to depend on adjudication through traditional regulatory or legal mechanisms. Nevertheless, that still leaves a great many public disputes that can be mediated (Susskind 2006). These cases would probably not make their way to court, and thus private mediation rather than JDR would be the most likely source of attempting resolution. However, if a public dispute (in which one party is a public agency) did make its way to court, and none of the five conditions listed above applied, we believe JDR could be used to resolve the matter just as well as private mediation.

In the family law area, as we pointed out in Chapter 6, certain classes of cases should not be mediated either (Clarke and Davies 1991).

• 1. [W]here the parties are hoping to gain some tactical or strategic advantage which is not related to the subject matter of the dispute, e.g., to delay proceedings, or as a fishing expedition to gain information.

• 2. Where domestic violence or fear of violence is suspected;

• 3. Cases involving child abuse or sexual abuse;

• 4. Where the parties are so conflict-ridden they are incapable of considering the dispute between them apart from their own feelings (i.e., the “all or nothing” dispute);

• 5. Where one of the disputants is so seriously deficient in information that any ensuing agreement would not be based on informed consent; or

• 6. If the disputants reach an agreement which the mediator believes is illegal, is damaging to a third party, is grossly inequitable to one of the parties, or is the result of bad faith bargaining, the mediator should terminate the mediation but might not have the power to do so.